NATIVE LAND COURT.

Poverty Bay Herald, Volume X, Issue 2034, 14 November 1883, Page 2

NATIVE LAND COURT.

(Before His Honor Judge Brookflold.) RuANrtAiiERU Block. — Hera Hokokao said she had at first made application for the whole block to be subdivided, but now would only ask for her own share to be cut out. She wished her portion cut in the part awarded to Mr. Scott. — Hia Honor said he could not alter his award to Scott. — Hera said she had objected to the award made to Scott. — Hia Honor said he would not alter his decision, and struck the application out. Taruhero Block. — His Honor said the wishes of the Court had not been carried out in this block, ou the part of Mr. McDonald. — Mr. Tucker asked leave to read a telegram from Mr. McDonald, but Hiß Honor said Mr. McDonald ought to have been present, and proceeded to give the following judgment : — This is a case in which Captain Tucker claimed to have the interest of Kataraina vested ia himself, with Mr. Allan McDonald and Riperata as trustees for Katarajna, and it presents some rather curious features. ! When this application was first made on the sth October last, Captain Tucker stated that |he claimed under and by virtue. of a deed dated in 1878 (which was not produced at the time), but which ho alleged was. a conveyance from Kataraina to himself, Mr. McDouald and Riperata, upon trust for the payment of an annuity to Kataraiua for life, and after her death to convey the properties therein mentioned to Riperata and her children. This deed appears to have existed only in Captain Txicker'B imagination, though we acquit him from any intention of misleading this Court in making the statement he did. The real state of the case turns out to be as follows : — Kataraina having quarrelled with her sister, Riperata, appears to have desired to get rid of all her properties, so that her sister and her children should have no chance of obtaining any share of them. Tucker then, in the interest of all parties, induced Kataraina to convey everything to him, which she did, for the consideration, as stated in the deed, of £1,000. This sum Tucker says was only intended as a nominal consideration, and the deed, though very inartistically drawn, was intended to operate only as a trust deed, and he further states he would not have parted with part of the property without the consent of Kataraina. We see no reason to doubt the bona fides of Tucker in the matter, and think that his statement is borne out by the fact that he did not attempt to make any profit out of the transaction, but when he was requested to convey the properties he had acquired to McDouald he did so-with-out demur. The next step in this matter is the conveyance by Tucker to McDonald, which we presume is brought forward in the interest of McDonald, and as a proof that neither Kataraina, nor any persons as trustees for her, have any title .to a share in Taruheru, such share being included in the conveyance now under consideration, and the consideration in that deed is somewhat peculiar, being an indemnity to Tucker against the payment of the £1,000 consideration mentioned in, the. former deed, and a covenant with Tucker to pay Kataraina the annuity of £150 during life, which appears to us to be anything but a good consideration moving to Kataraina. However, at a subsequeut date, McDonald does by deed covenant with Kataraina to pay £150 per annum during life, but this annuity is only secured by the bare covenant ; there is no security by way of rent, .charge or otherwise for the due payment of it, and it is stated ou oath by Kataraina that in fact the annuity has not been regularly paid, and that the only amount she has received is about £35. This statement being entirely uncontradicted, though ample time has been allowed for the accounts to be made out, that the annuity has not been paid is, we think, evidenced by the fact that Kataraina has been induced to take proceedings in the R.M. Court against Mr. McDonald for the recovery of X.IOO, being arrears of annuity alleged to be due upon Whatanpoko. This block, having apparently been absolutely sold by him to Tucker for £200, which she says he received, and no annuity being payable to her in respect to her interest in this block. This action, we think, has been brought solely in the interest of McDonald, and without the effect of it having been explaiued to Kataraina. Whoever advised her to bring this action while the validity of the annuity deed was under consideration by this Court, is deserving, in our opinion, of the greatest censure, seeing that the result of that action, if it had been allowed to proceed, would have prevented Kataraina. from further disputing the validity of the deed in this Court, and would have further prevented her from prosecuting any .claim for other arrears of the annuity, and would have operated as an admission on her part that the £200 consideration money paid for Whataupoko was to be taken as a part payment of the annuity covenanted to be paid to her. The next proceeding in this case is a conveyance from McDonald to Tucker and Riperata of certain shares ia Makauri and Mataarhero B upon trust not to pay Kataraina anything, but to pay him (McDonald) £60 per annum during Kataraina's life, to pay the balance of the proceeds of the land to Riperata, and after Kataraina's death to convey the property to Riperata's children, and it would seem that it is by virtue of this deed that Tucker thought he was entitled to . make his claim. Had the application been made under the Act of 1873 it would have been for an order of freehold tenure, and this Court would have been bound to enquire into the fairness and justness of the transaction, and whether the whole purchase money had been paid, and now that the application is under the Land Division Act, 1882, for an order for a Crown Grant, a Land Transfer certificate to issue, we feel bound to make similar enquiries, and we are of opinion that the consideration set forth in the deed to McDonald has not been paid, and failed,, and that the transaction was not fair and just. We shall, therefore, order that a Land Transfer certificate shall issue to Kataraina for 16a. 3r. 13p., and that such portion shall adjourn the land already awarded. to Tucker, and that it shall be inalienable. The order already made in Tahoka must be amended in accordance with this judgment. The arbitration which was to have been made as to the value of the houses, etc., on the shares of Mr. Tucker bought from G. E. Read, was allowed to stand over till next; Monday.